exv10w1



 







Exhibit 10.1




INDEMNITY AGREEMENT




     This Indemnity Agreement (this “Agreement”), dated as of the 24th day of March, 2006, is made
by and between Inter-Tel, Incorporated, an Arizona corporation (the “Company”), and the undersigned
director and/or officer of the Company (the “Indemnitee”).



RECITALS




     A. The Company is aware that competent and experienced persons are reluctant to serve as
directors or officers of corporations unless they are protected by comprehensive liability
insurance and/or indemnification, due to the exposure to litigation costs and risks resulting from
their service to such corporations, and due to the fact that the exposure frequently bears no
reasonable relationship to the compensation of such directors and officers.



     B. The Board of Directors of the Company (the “Board”) has concluded that, to retain and
attract talented and experienced individuals to serve as directors and officers of the Company, it
is necessary for the Company contractually to indemnify directors and officers and to assume for
itself maximum liability for expenses and damages in connection with claims against such directors
and officers in connection with their service to the Company.



     C. The Arizona Revised Statutes empower the Company to eliminate the personal liability of any
director of the Company to the Company or its shareholders for monetary damages for any action
taken or any failure to take any action as a director and to indemnify by agreement its present and
former directors and officers against liability incurred in a proceeding.



     D. It is the intention of the Company that no director or officer of the Company shall have
any personal liability to the Company or its shareholders for monetary damages for any action taken
or any failure to take any action and that the Company indemnify and advance expenses to, to the
fullest extent allowed by law, to any director or officer that incurs liability or expense by
reason of such person acting as a director or officer of the Company.



     E. The Company desires and has requested the Indemnitee to serve or continue to serve as a
director or officer of the Company free from undue concern for claims for damages arising out of or
related to such services to the Company.



     NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:



     1. Definitions. As used in this Agreement, the following terms shall have the meanings set
forth below.



          1.1 Company. The “Company” shall include, in addition to its subsidiaries any resulting
corporation, any constituent corporation (including any constituent of a constituent) absorbed in a
consolidation or merger that, if its separate existence had continued, would have had power and
authority to indemnify its directors and officers, so that any person who is or was a director
or officer of such constituent corporation, or is or was serving at the request of such constituent
corporation as a director or officer of another corporation, partnership, joint venture, trust, or
other enterprise shall stand in the same position under this Agreement with respect to the





 









 







resulting or surviving corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.




          1.2 Director. “Director” means an individual who is or was a director of the Company or an
individual who, while a director of the Company, is or was serving at the Company’s request as a
director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other entity. A director is
considered to be serving an employee benefit plan at the Company’s request if the director’s duties
to the Company also impose duties on or otherwise involve services by the director to the plan or
to participants in or beneficiaries of the plan. Director includes the estate or personal
representative of a director.




          1.3 Expenses. “Expenses” includes attorney fees and all other costs and expenses reasonably
related to a proceeding. Without limiting the foregoing and to the extent not prohibited by the
Arizona Revised Statutes, expenses include all direct and indirect costs of any type or nature
whatsoever (including, without limitation, all disbursements and other out-of-pocket costs of
attorneys) actually and reasonably incurred by the indemnified person in connection with the
investigation, defense, or appeal of a proceeding or establishing or enforcing a right to
indemnification or advancement of expenses under this Agreement, the Arizona Revised Statutes, or
otherwise.




          1.4 Liability. “Liability” means the obligation to pay a judgment, settlement, penalty, or
fine, including an excise tax assessed with respect to an employee benefit plan, or reasonable
expenses incurred with respect to a proceeding and includes obligations and expenses that have not
yet been paid by the indemnified person but that have been or may be incurred.




          1.5 Officer. “Officer” means an individual who is or was an officer of the Company or an
individual who, while an officer of the Company, is or was serving at the Company’s request as a
director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other entity. An officer is
considered to be serving an employee benefit plan at the Company’s request if the officer’s duties
to the Company also impose duties on or otherwise involve services by the officer to the plan or to
participants in or beneficiaries of the plan. Officer includes the estate or personal
representative of an officer.




          1.6 Official Capacity. “Official capacity” means, if used with respect to a director, the office of director in
the Company and, if used with respect to an officer, the office in the Company held by the officer.
Official capacity does not include service for any other foreign or domestic corporation or any
partnership, joint venture, trust, employee benefit plan, or other entity.




          1.7 Outside Director. “Outside director” means a director who, when serving as a director,
was not an officer, employee, or holder of more than five percent of the outstanding shares of any
class of stock of the Company or of any affiliate of the Company.




          1.8 Party. “Party” includes an individual who was, is, or is threatened to be made a named
defendant or respondent in a proceeding.





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          1.9 Proceeding. “Proceeding” means any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative and whether formal or
informal.




          1.10 Subsidiary. “Subsidiary” means any corporation or other entity of which more than 50% of
the outstanding voting securities is owned directly or indirectly by the Company, by the Company
and one or more of its subsidiaries, or by one or more of the Company’s subsidiaries.




     2. Agreement to Serve. The Indemnitee agrees to serve and/or continue to serve the Company,
at the will of the Company (or under separate agreement, if such agreement exists), in the capacity
the Indemnitee currently serves the Company, faithfully and to the best of the Indemnitee’s
ability, as long as the Indemnitee is duly appointed or elected and qualified in accordance with
the applicable provisions of the charter documents of the Company or any subsidiary of the Company;
provided, however, that the Indemnitee may at any time and for any reason resign from such
position (subject to any contractual obligation that the Indemnitee may have assumed apart from
this Agreement), and the Company and any subsidiary shall have no obligation under this Agreement
to continue the Indemnitee in any such position.



     3. Directors’ and Officers’ and Other Insurance. The Company shall, to the extent that the
Board determines it to be economically reasonable, purchase and maintain insurance, including
directors’ and officers’ liability insurance (“D&O Insurance”) and retrospectively rated and
self-insured programs, on behalf of an individual who is or was a director or officer of the
Company or who, while a director or officer of the Company, is or was serving at the request of the
Company as a director, officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture,
trust, employee benefit plan, or other entity, against liability asserted against or incurred
by the individual in that capacity or arising from the individual’s status as a director or
officer, whether or not the Company would have power to indemnify or advance expenses to the
individual against the same liability under this Agreement. Any insurance will be on such terms
and conditions as may be approved by the Board.



     4. Indemnification.




          4.1 Mandatory Indemnification of Outside Directors and Officers. The Company shall indemnify
its outside directors and, subject to Section 9.3 of this Agreement, its officers who are not
directors against liability, subject to Section 9.1 of this Agreement. This right to
indemnification against liability under this Section 4.1 is independent of any right to
indemnification provided elsewhere under this Agreement, including Sections 4.2, 8.1, 8.2, and 8.5.
This right to indemnification under this Section 4.1 is not subject to the prohibitions of Section
8.3 of this Agreement, and the Company shall not be obligated to make a submission under Section
8.4 of this Agreement in the event this Section 4.1 right to indemnification is applicable.




          4.2 Third-Party Actions. Subject to Section 9.2 of this Agreement, the Company shall
indemnify and advance expenses to an individual made party to a proceeding (other than an action
by or in the right of the Company) for all expenses and liabilities of any




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type whatsoever
(including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid
in settlement) actually and reasonably incurred by the director or officer in connection with the
investigation, defense, settlement, or appeal of such proceeding) because either (a) the individual
was made party to the proceeding because the individual is or was a director or officer of the
Company, if (i) the conduct of the director or officer was in good faith, (ii) the director or
officer reasonably believed that the conduct was in the best interests of the Company in the case
of conduct in an official capacity, (iii) the director or officer reasonably believed that the
conduct was at least not opposed to the best interests of the Company in all other cases, (iv) the
director or officer had no reasonable cause to believe the conduct was unlawful in the case of any
criminal proceedings or, (v) the director or officer reasonably believed the conduct with respect
to an employee benefit plan was in the interests of the participants in and beneficiaries of the
employee benefit plan or, (b) the director or officer engaged in conduct for which broader
indemnification has been made permissible or obligatory under the Company’s Articles of
Incorporation.




          4.3 Exception for Amounts Covered by Insurance. Notwithstanding the foregoing, the Company
shall not be obligated to indemnify the Indemnitee for expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and
amounts paid in settlement) to the extent such have been paid to the Indemnitee by D&O Insurance.




     5. Partial Indemnification and Contribution.



          5.1 Partial Indemnification. If the Indemnitee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of any expenses or liabilities of
any type whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or
penalties, and amounts paid in settlement) incurred by the Indemnitee in the investigation,
defense, settlement, or appeal of a proceeding but is not entitled, however, to indemnification for
all of the total amount thereof, then the Company shall nevertheless indemnify the Indemnitee for
such total amount, except as to the portion thereof to which the Indemnitee is not entitled to
indemnification.




          5.2 Contribution. If the Indemnitee is not entitled to the indemnification provided in
Section 4 for any reason other than the statutory limitations set forth in the Arizona General
Corporation Law, then in respect of any threatened, pending, or completed proceeding in which the
Company is jointly liable with the Indemnitee (or would be if joined in such proceeding), the
Company shall contribute to the amount of expenses (including attorneys’ fees), judgments, fines,
and amounts paid in settlement actually and reasonably incurred and paid or payable by the
Indemnitee in such proportion as is appropriate to reflect (i) the relative benefits received by
the Company on the one hand and the Indemnitee on the other hand from the transaction from which
such proceeding arose and (ii) the relative fault of the Company on the one hand and of the
Indemnitee on the other hand in connection with the events that resulted in such expenses,
judgments, fines, or settlement amounts, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and of the Indemnitee on the other hand shall be
determined by reference to, among other things, the parties’ relative intent, knowledge, access to
information, and opportunity to correct or prevent the circumstances resulting in such expenses,
judgments, fines, or settlement amounts. The Company agrees that it





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would not be just and
equitable if contribution pursuant to this Section 5 were determined by pro rata allocation or any
other method of allocation that does not take account of the foregoing equitable considerations.




     6. Advancement of Expenses.



          6.1 Mandatory Indemnification Against Reasonable Expenses for Prevailing Party. The Company
shall indemnify a director or officer who was the prevailing party, on the merits or otherwise, in
the defense of any proceeding to which the director or officer was a party because the director or
officer is or was a director of the Company against reasonable expenses incurred by the director or
officer in connection with the proceeding.




          6.2 Mandatory Expense Advancement for Outside Directors and Officers Who Are Not Directors.
Subject to Section 9.1 and Section 9.3 of this Agreement, the Company shall pay an outside
director’s and an officer’s expenses in advance of a final disposition of a proceeding if the
director or officer (a) furnishes the Company with a written affirmation of the
director’s and officer’s good faith belief that (i) the conduct of the director or officer was
in good faith, (ii) the director or officer reasonably believed that the conduct was in the best
interests of the Company in the case of conduct in an official capacity, (iii) the director or
officer reasonably believed that the conduct was at least not opposed to the best interests of the
Company in all other cases, (iv) the director or officer had no reasonable cause to believe the
conduct was unlawful in the case of any criminal proceeding, or (v) the director or officer
reasonably believed the conduct with respect to an employee benefit plan was in the interests of
the participants in or beneficiaries of the employee benefit plan, and (b) the director or officer
furnishes the Company with a written undertaking executed personally, or on the director’s or
officer’s behalf, to repay the advance if it is ultimately determined that the director or officer
did not meet the standard of conduct.




          6.3 Inside Directors and Officers. Subject to Section 9.3 below, the Company shall pay or
advance the reasonable expenses incurred by a director, who is not an outside director, or by an
officer who is a party to a proceeding in advance of the final disposition of the proceeding if
both of the following conditions are met: (a) either (i) the director or officer furnishes the
Company with a written affirmation of the director’s or officer’s good faith belief that (A) the
conduct of the director or officer was in good faith, (B) the director or officer reasonably
believed that the conduct was in the best interests of the Company in the case of conduct in an
official capacity, (C) the director or officer reasonably believed that the conduct was at least
not opposed to the best interests of the Company in all other cases, (D) the director or officer
had no reasonable cause to believe the conduct was unlawful in the case of any criminal proceeding,
or (E) the director or officer reasonably believed the conduct with respect to an employee benefit
plan was in the interests of the participants in or beneficiaries of the employee benefit plan, or
(ii) that the proceeding involves conduct for which liability has been eliminated under a provision
of the Company’s Articles of Incorporation pursuant to Section 10-202, subsection B, paragraph 1 of
the Arizona Revised Statutes, and (b) the director or officer furnishes the Company with a written
undertaking, executed personally or on behalf of the director or officer, to repay the advance if
the director or officer is not entitled to mandatory indemnification under Section 10-852 of the
Arizona Revised Statutes and it is ultimately






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determined under Section 10-854 or Section 10-855 of
the Arizona Revised Statutes that the director or officer did not meet the standard of conduct.




          6.4 Derivative Actions. Subject to Section 9.2 of this Agreement, the Company shall advance
expenses actually and reasonably incurred by a director or officer who is a party to any proceeding
by or in the right of the Company to procure a judgment in its favor because either (a) the
individual was made party to the proceeding because the individual is or was a director or officer
of the Company, if (i) the conduct of the director or officer was in good faith, (ii) the director
or officer reasonably believed that the conduct was in the best interests of the Company in the
case of conduct in an official capacity, (iii) the director or officer reasonably believed that the
conduct was at least not opposed to the best interests of the Company in all other cases, (iv) the
director or officer had no reasonable cause to believe the conduct was unlawful in the case of any
criminal proceeding, or (v) the director or officer reasonably believed the conduct with respect to
an employee benefit plan was in the interests of the participants in and beneficiaries of the
employee benefit plan or, (b) the director or officer engaged in conduct for which broader
indemnification has been made permissible or obligatory under the Company’s Articles of
Incorporation.




          6.5 Rights Independent. The rights to advancement of expenses provided in Sections 6.1, 6.2, 6.3,
and 6.4 above are all independent of one another and an officer or director who is entitled to
expense advancement under any of such sections shall not be denied expense reimbursement because
the officer or director is not entitled to expense advancement under another of such sections.




          6.6 Adverse Determination. The termination of a proceeding by judgment, order, settlement, or
conviction or on a plea of no contest or its equivalent is not of itself determination that the
director or officer did not meet the standards set forth in Section 4.2 or Section 6.3 of this
Agreement.




     7. Notice and Other Indemnification Procedures.



          7.1 Notification. Promptly after receipt by the Indemnitee of notice of the commencement of
or the threat of commencement of any proceeding, the Indemnitee shall, if the Indemnitee believes
that indemnification with respect thereto may be sought from the Company under this Agreement,
notify the Company of the commencement or threat of commencement thereof.




          7.2 Insurance. If, at the time of the receipt of a notice of the commencement of a proceeding
pursuant to Section 7.1 hereof, the Company has D&O Insurance in effect, the Company shall give
prompt notice of the commencement of such proceeding to the insurers in accordance with the
procedures set forth in the respective policies. The Company shall thereafter take all necessary
or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable
as a result of such proceeding in accordance with the terms of such D&O Insurance policies.




          7.3 Defense. In the event the Company shall be obligated to advance the expenses for any
proceeding against the Indemnitee, the Company, if appropriate, shall be





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entitled to assume the
defense of such proceeding, with counsel approved by the Indemnitee (which approval shall not be
unreasonably withheld), upon the delivery to the Indemnitee of written notice of its election to do
so. After delivery of such notice, approval of such counsel by the Indemnitee and the retention of
such counsel by the Company, the Company will not be liable to the Indemnitee under this Agreement
for any fees of counsel subsequently incurred by the Indemnitee with respect to the same
proceeding, provided that (a) the Indemnitee shall have the right to employ the
Indemnitee’s own counsel in any such proceeding at the Indemnitee’s expense; (b) the Indemnitee
shall have the right to employ the Indemnitee’s own counsel in connection with any
such proceeding, at the expense of the Company, if such counsel serves in a review, observer,
advice, and counseling capacity and does not otherwise materially control or participate in the
defense of such proceeding; and (c) if (i) the employment of counsel by the Indemnitee has been
previously authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that
there may be conflict of interest between the Company and the Indemnitee in the conduct of any such
defense, or (iii) the Company shall not, in fact, have employed counsel to assume the defense of
such proceeding, then the fees and expenses of the Indemnitee’s counsel shall be at the expense of
the Company.




          7.4 Compliance with Articles of Incorporation. An Indemnitee who complies with Sections 7.1 and
7.3 shall be deemed to have not “unreasonably refused to permit the Company at its own expense and
through counsel of its own choosing to defend the Indemnitee in the action.” As a result, in the
event of such compliance, the Company shall not be entitled to refuse indemnification pursuant to
the first paragraph of Article IX of the Company’s articles of incorporation.




     8. Determination of Right to Indemnification.



          8.1 Success on Merits. To the extent the Indemnitee has been successful on the merits or
otherwise in defense of any proceeding referred to in Section 4.1 or 4.2 of this Agreement or in
the defense of any claim, issue, or proceeding described therein, the Company shall indemnify the
Indemnitee against liability and against expenses actually and reasonably incurred by the
Indemnitee in connection with the investigation, defense, or appeal of such proceeding, or such
claim, issue, or proceeding, as the case may be.




          8.2 Proof by Company. In the event that Section 8.1 is inapplicable, or does not apply to the
entire proceeding, the Company shall nonetheless indemnify the Indemnitee unless the Company shall
prove by clear and convincing evidence to a forum listed in Section 8.3 below that the Indemnitee
has not met the applicable standard of conduct required to entitle the Indemnitee to such
indemnification.




          8.3 Applicable Forums. The Company may not indemnify a director or officer under Section 4.2
of this Agreement unless authorized in the specific case after a determination has been made that
indemnification of the director is permissible in the circumstances because the director has met
the standard of conduct set forth in Section 4.2 of this Agreement.




                     (a) The determination shall be made either of the following:



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                (i) By the Board by a majority vote of the directors not at the time parties to the
proceeding.




                (ii) By special legal counsel (A) selected by majority vote of the disinterested directors or
(B) if there are no disinterested directors, selected by majority vote of the Board.




                (iii) By the shareholders, but shares owned or voted under the control of directors who are at
the time parties to the proceeding shall not be voted on the determination.




          (b) Neither special legal counsel nor any shareholder has any liability whatsoever for a
determination made pursuant to this section. In voting pursuant to subsection B of this section,
directors shall discharge their duty in accordance with Section 10-830 of the Arizona Revised
Statutes.




          (c) Authorization of indemnification and evaluation as to reasonableness of expenses shall be
made in the same manner as the determination that indemnification is permissible, except that if
the determination is made by special legal counsel, authorization of indemnification and evaluation
as to reasonableness of expenses shall be made by those entitled under subsection (a)(ii),
paragraph 2 of this Section 8.3 to select counsel.




     8.4 Submission. As soon as practicable, and in no event later than 30 days after the forum
has been selected pursuant to Section 8.3 above, the Company shall, at its own expense, submit to
the selected forum its claim that the Indemnitee is not entitled to indemnification, and the
Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to
defend against such claim.



     8.5 Court Ordered Indemnification. A director or officer of the Company who is a party to a
proceeding may apply for indemnification or an advance for expenses to the court conducting the
proceeding or to another court of competent jurisdiction. On receipt of an application, the court,
after giving any notice the court considers necessary may order indemnification or advance for
expenses if the court determines either of the following:



          (a) The director or officer is entitled to mandatory indemnification under Section 10-852 of
the Arizona Revised Statutes and contemplated in Sections 4.1, 6.1, and 6.2 of this Agreement.




          (b) The director or officer is fairly and reasonably entitled to indemnification in view of
all of the relevant circumstances, (i) whether or not the director or officer met the following
standard of conduct: (A) the conduct of director or officer was in good faith, (B) the director or
officer reasonably believed that the conduct was in the best interests of the Company in the case
of conduct in an official capacity, (C) the director or officer reasonably believed that the
conduct was at least not opposed to the best interests of the Company in all other cases, (D) the
director or officer had no reasonable cause to believe the conduct was unlawful in the case of any
criminal proceedings, or (ii) whether or not the director or officer was adjudged liable to the
Company in connection with a proceeding by or in the right of the Company or the director or
officer was adjudged on the basis that financial benefit was
improperly received by the director or officer in connection with any proceeding (other than
by





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or in the right of the Company) charging improper financial benefit to the director or officer,
but if the director or officer was adjudged liable under Section 10-851D of the Arizona Revised
Statutes as contemplated by Section 8.5(b)(ii) of this Agreement, indemnification is limited to
reasonable expenses incurred.




     8.6 Expenses for Interpretation. Notwithstanding any other provision in this Agreement to the
contrary, the Company shall indemnify the Indemnitee against all expenses incurred by the
Indemnitee in connection with any hearing or proceeding under this Section 8 involving the
Indemnitee and against all expenses incurred by the Indemnitee in connection with any other
proceeding between the Company and the Indemnitee involving the interpretation or enforcement of
the rights of the Indemnitee under this Agreement unless a court of competent jurisdiction finds
that each of the material claims and/or defenses of the Indemnitee in any such proceeding was
frivolous or not made in good faith.



   9. Exceptions. Any other provision herein to the contrary notwithstanding, the Company shall
not be obligated pursuant to the terms of this Agreement:



     9.1 Outside Directors and Officers. The Company shall not provide the indemnification or
advances of expenses to an outside director or officer as provided in Sections 4.1 or 6.2 of this
Agreement if a court of competent jurisdiction has determined before payment (a) that the outside
director or officer failed to meet the following standards: (i) the conduct of the director or
officer was in good faith, (ii) the director or officer believed that the conduct was in the best
interests of the Company in the case of conduct in an official capacity, (iii) the director or
officer reasonably believed that the conduct was at least not opposed to the best interests of the
Company in all other cases, (iv) the director or officer had no reasonable cause to believe the
conduct was unlawful in the case of any criminal proceeding, and (v) the director or officer
reasonably believed the conduct with respect to an employee benefit plan was in the interests of
the participants in and beneficiaries of the employee benefit plan, and (b) a court of competent
jurisdiction does not otherwise authorize payment as contemplated by Section 8.5 of this Agreement
and provided in Section 10-854 of the Arizona Revised Statutes. The Company shall not delay
payment of indemnification or expenses as provided in Sections 4.1 or 6.2 of this Agreement for
more than 60 days after a request is made unless ordered to do so by a court of competent
jurisdiction.



     9.2 Directors and Officers. The Company may not indemnify a director or officer as provided
in Section 4.2 or Section 6.4 of this Agreement:



          (a) the director or officer was adjudged liable to the Company in connection with a proceeding
by or in the right of the Company; or




          (b) the director or officer was adjudged liable in connection with any other proceeding
charging improper financial benefit to the director or officer, whether or not involving action in
the director’s or officer’s official capacity, on the basis that financial benefit was improperly
received by the director or officer.




     9.3 Officers. If an individual is an officer but not a director or an individual is both an
officer and a director but the basis of which such individual is made party to the



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proceeding is an
act of omission solely as an officer, indemnification will not be available under Sections 4.1,
4.2, 6.2, or 6.3 of this Agreement for any of the following:



                (a) Liability in connection with a proceeding by or in the right of the Company other than for
reasonable expenses incurred in connection with the proceeding; or




                (b) Liability arising out of conduct that constitutes (i) receipt by the officer of a
financial benefit to which the officer is not entitled, (ii) an intentional inflection of harm on
the Company or its shareholders, or (iii) an intentional violation of criminal law.




          9.4 Claims Initiated by Indemnitee. To indemnify or advance expenses to the Indemnitee with
respect to proceedings or claims initiated or brought voluntarily by the Indemnitee and not by way
of defense, except with respect to proceedings specifically authorized by the Board or
brought to establish or enforce a right to indemnification and/or advancement of expenses arising
under this Agreement, the charter documents of the Company or any subsidiary or any statute or law
or otherwise, but such indemnification or advancement of expenses may be provided by the Company in
specific cases if the Board finds it to be appropriate; or




          9.5 Unauthorized Settlements. To indemnify the Indemnitee hereunder for any amounts paid in
settlement of a proceeding unless the Company consents in advance in writing to such settlement,
which consent shall not be unreasonably withheld; or




          9.6 Securities Law Actions. To indemnify the Indemnitee on account of any suit in which
judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or
sale by the Indemnitee of securities of the company pursuant to the provisions of Section 16(b) of
the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal,
state, or local statutory law; or




          9.7 Unlawful Indemnification. To indemnify the Indemnitee if a final decision by a court
having jurisdiction in the matter shall determine that such indemnification is not lawful. In this
respect, the Company and the Indemnitee have been advised that the Securities and Exchange
Commission takes the
position that indemnification for liabilities arising under the federal securities laws is
against public policy and is, therefore, unenforceable and that claims for indemnification should
be submitted to appropriate courts for adjudication.




     10. Non-Exclusivity. The provisions for indemnification and advancement of expenses set forth
in this Agreement shall not be deemed exclusive of any other rights that the Indemnitee may have
under any provision of law, the Company’s Articles of Incorporation or Bylaws, the vote of the
Company’s stockholders or disinterested directors, other agreements, or otherwise, both as to
action in the Indemnitee’s official capacity and to action in another capacity while occupying the
Indemnitee’s position as an agent of the Company, and the Indemnitee’s rights hereunder shall
continue after the Indemnitee has ceased acting as an agent of the Company and shall inure to the
benefit of the heirs, executors, and administrators of the Indemnitee.



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     11. General Provisions.



          11.1 Interpretation of Agreement. It is understood that the parties hereto intend this
Agreement to be interpreted and enforced so as to provide indemnification and advancement of
expenses to the Indemnitee to the fullest extent now or hereafter permitted by law, except as
expressly limited herein.




          11.2 Severability. If any provision or provisions of this Agreement shall be held to be
invalid, illegal, or unenforceable for any reason whatsoever, then (a) the validity, legality, and
enforceability of the remaining provisions of this Agreement (including, without limitation, all
portions of any paragraphs of this Agreement containing any such provision held to be invalid,
illegal, or unenforceable that are not themselves invalid, illegal, or unenforceable) shall not in
any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, all portions of any paragraphs of this Agreement
containing any such provision held to be invalid, illegal, or unenforceable, that are not
themselves invalid, illegal, or unenforceable) shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or unenforceable and to give effect to
Section 11.1 hereof.




          11.3 Modification and Waiver. No supplement, modification, or amendment of this Agreement
shall be binding unless executed in writing by the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar), nor shall such waiver constitute a continuing waiver.




          11.4 Subrogation. In the event of full payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who
shall execute all documents required and shall do all acts that may be necessary or desirable
to secure such rights and to enable the Company effectively to bring suit to enforce such rights.




          11.5 Counterparts. This Agreement may be executed in one or more counterparts, which shall
together constitute one agreement.




          11.6 Successors and Assigns. The terms of this Agreement shall bind, and shall inure to the
benefit of, the successors and assigns of the parties hereto. The indemnification and advancement
of expenses provided by, or granted pursuant to, this Agreement shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a director, officer,
employee, or agent and shall inure to the benefit of the heirs, executors and administrators of
such a person.




          11.7 Notice. All notices, requests, demands, and other communications under this Agreement
shall be in writing and shall be deemed duly given (a) if delivered by hand and receipted for by
the party addressee; or (b) if mailed by certified or registered mail, with postage prepaid, on the
third business day after the mailing date. Addresses for notice to either party are as shown on
the signature page of this Agreement or as subsequently modified by written notice.






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          11.8 Governing Law. This Agreement shall be governed exclusively by and construed according
to the laws of the state of Arizona, as applied to contracts between Arizona residents entered into
and to be performed entirely within Arizona.




          11.9 Consent to Jurisdiction. The Company and the Indemnitee each hereby irrevocably consent
to the jurisdiction of the courts of the state of Arizona for all purposes in connection with any
action or proceeding which arises out of or relates to this Agreement.




          11.10 Attorneys’ Fees. In the event Indemnitee is required to bring any action to enforce
rights under this Agreement (including, without limitation, the expenses of any proceeding
described in Section 3), the Indemnitee shall be entitled to all reasonable fees and expenses in
bringing and pursuing such action, unless a court of competent jurisdiction finds each of the
material claims of the Indemnitee in any such action was frivolous and not made in good faith.




     IN WITNESS WHEREOF, the parties hereto have entered into this Indemnity Agreement effective as
of the date first written above.



	 	 	 	 	 	 	 
	INDEMNITEE:	 	INTER-TEL, INCORPORATED	 	 
	 	 	an Arizona corporation	 	 
	 
	 	 	 	 	 	 
	 


	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Date:	 	 	 	 
	 

	 	 	 	 	 	 






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